The petitioner is a 'five star' hotel at Kumarakom under the name and style 'M/s.Kumarakom Lake Resort', having registration under the Kerala Value Added Tax Act, 2003. In the course of business, the petitioner has effected sale of 'Indian Manufactured Foreign Liquor (IMFL)' as well as 'Foreign Manufactured Foreign Liquor (FMFL)' to the various customers.
2. The petitioner was served with Ext.P1 notice under Section 17(3) of the KVAT Act, in response to which the petitioner submitted Ext.P2 reply. The assessment was finalised as per Ext.P3 assessment order, in respect of the year 2010- 20111. It is stated that, similar notice has been issued in respect of the year 2011-2012 as borne by Ext.P4 and the petitioner is taking necessary steps, by submitting reply.
3. Ext.P3 assessment order has been challenged by way of Ext.P5 appeal, along with petition for stay before the 2nd respondent. After considering the petitioner for stay, Ext.P6 interim order of stay was passed, directing the petitioner to satisfy 30% of the disputed liability, so as to avail the benefit of interim stay during pendency of the appeal. This made the petitioner to approach this Court by filing this writ petition.
4. The learned counsel for the petitioner points out that, there is absolutely no rhyme or reason for having mulcted the liability upon the petitioner, merely referring to the probable gross profit difference between the 'IMFL' and 'FMFL' sale. In the case of the 'IMFL', the petitioner had declared a gross profit of 86%, whereas in the case of 'FMFL', it is only to an extent of 59%. The petitioner has sought to explain the position as to the rate difference, in the writ petition and also before the authorities concerned. These vital aspects have not been properly appreciated by the Assessing Authority and also by the Appellate Authority, while passing Ext.P6 order, which is sought to be intercepted in this writ petition.
5. Heard the learned Government Pleader as well, who sought to sustain the impugned order, attempting to make a comparative evaluation of the facts and figures. This Court does not find it necessary to go into such aspects, as it has to be dealt with by the Appellate Authority with reference to the relevant records maintained by the petitioner, more so when the appeal is pending consideration.
6. It is brought to the notice of this Court during the course of hearing, that no incriminating materials have been unearthed from the custody of the petitioner, to fix the gross profit for FMFL sale, at the same rate as of IMFL.
7. Considering the particular facts and circumstances, this Court finds that the liability now sought to be satisfied by the petitioner could be scaled down to '15%', instead of 30% ordered in Ext.P6 order. It is ordered accordingly. Subject to satisfaction of 15% of the disputed liability, the petitioner will continue to enjoy the benefit of interim stay during pendency of the appeal. Since the time stipulated in Ext.P6 order is already over, the petitioner is granted a further time of 'two weeks' to comply with the requirement.
The petitioner shall produce a copy of this judgment, along with a copy of the writ petition, before the 2nd respondent, for further steps.
P.R. RAMACHANDRA MENON, JUDGE sp